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What will follow the death of Scalia?

With the death of Antonin Scalia on the 13th of February this year a series of events began to unfold, these events would normally be considered newsworthy, but perhaps not internationally newsworthy. I am of course talking of the nomination of a new Justice to the Supreme Court. There are special, but not unique, circumstances surrounding this appointment that have made it register on the radar of the international media. The Presidential election is looming large in many minds, especially with the close race between candidates for nomination on both sides and the rhetoric used by some of the candidates, looking at you Trump!

Antonin Scalia was born in 1936 in New Jersey and was appointed to the Supreme Court in 1986 by President Reagan. Scalia was a Republican and held the view that the Constitution should be interpreted according to the philosophy of originalism, and he became the core of the court’s conservative majority. President Obama has nominated his candidate to replace Scalia in the Supreme Court. He has chosen Judge Merrick Garland, who is currently a judge on the U.S Court of Appeals for the District of Columbia Circuit, and has been since 1997. Merrick Garland is a Democrat and is no stranger to delayed confirmations as, although Clinton nominated him in 1995, his confirmation was delayed by Republican opposition until 1997. His nomination by President Obama in an election year has precedent, although Paul Ryan did suggest in an interview with the Milwaukee Journal Sentinel that ‘We are knee deep into a presidential election and I think the precedent for not filling a Supreme Court vacancy in such a time is justified’.

The position of Supreme Court Justice has been filled before in an election year, in fact 14 presidents have nominated 21 justices during presidential election years. This includes some that were not running for re-election such as Jackson and Cleveland and now Obama. Since 1900 there have been eight nominations to the Supreme Court during presidential election years, of which six have been confirmed and the two unsuccessful nominations did not succeed for reasons other than the timing. In 1956 the Senate was already adjourned, although Eisenhower made a recess appointment, and Brennan was then formally nominated and confirmed in 1957. In 1968 due to a bi-partisan filibuster, the nomination was declined, however Chief Justice Earl Warren remained on the bench, and did not retire as planned, so there was no vacancy to fill and the nomination was one to succeed the current Chief Justice rather than fill an empty seat. The bi-partisan filibuster to block Fortas from replacing Chief Justice Earl Warren did block Thornberry from taking Fortas’s seat.  Thornberry was from Texas and President Johnson had hoped that Thornberry’s nomination would pacify southern senators and prevent a filibuster, which was ultimately not the case.

By nominating a candidate, Obama has fulfilled his role as President and it is now up to the Senate to confirm Merrick Garland, although there is strong opposition to the candidate, mainly on principle, from the Republicans.  According to the New York Times, the Senate has never taken more than 125 days to vote on a successor from the time of nomination, with the average decision taking 25 days. Obama has over 300 days left in his term as President; therefore there is plenty of time for at least two nominations, if Garland, his first, is rejected.

In an opinion poll carried out by the Pew Research Center, 46% of the public favour confirmation of Merrick Garland, compared to 30% who do not and 24% who do not care or want a referendum.
More favor than oppose Garland’s Senate confirmation to the court

The public opinion increases when those surveyed had heard ‘a lot’ about Garland’s nomination. Of these; 61% favour confirmation, while 33% are still opposed and 6% offer no opinion.
Most who have heard ‘a lot’ about Garland pick favor his confirmation

The big question here is, since there is historical precedent to confirm nominations during Presidential election years, and a largely positive public opinion towards the candidate, what will the Republicans do?

Helena Coe

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